Parliamentary sovereignty
Who is sovereign?
In the USA the written constitution tells us that ‘we the people’ are sovereign
However the UK lacks a written constitution
Unsurprisingly, this means we need to search hard for the rule, the justification of the rule and the
“exceptions/ challenges” to the rule…
- This is a difficult area of the constitution;
- Ultimately about the location of power in the constitution.
- Links to separation of power and rule of law.
Political sovereignty
“the word ‘sovereignty’ is sometimes employed in a political rather than in a strictly legal sense. That
body is ‘politically sovereign or supreme in a state the will fo which is ultimately obeyed… in this sense of
the word the electors of great Britain maybe said to be… the body in which sovereign power is vested…
but this is a political, not a legal fact… the political sense of the word ‘sovereignty’ is, it is true, fully as
important as the legal sense or more so. But the two significations… are essentially different.
Legal sovereignty
Where does the legal sovereignty sit?
Case of proclamations (1610)
- King James I claimed the power to legislate by proclamation, ‘to prohibit new buildings in and
about London… [and no] prohibit the making of starch of wheat’.
- Coke CJ
- - the king by his proclamation or other ways cannot change any part of the common law, or
statute law, or the customs of the realm… also the king cannot create any offence by this
prohibition or proclamation, which was not an offence before, for that was to change the law,
and to make an offence which was not… also… the king hath no prerogative but that which the
law of the land allows him”
Bates’s case (case of imposition) (1606)
- Bates refused to pay an import duty that was imposed by James I without the approval of
parliament
- The duty was held valid by the courts
- Meant the king had the power to introduce and impose his own taxes.
DR Bonhams case (1609) 8 CO. REP 114
The bill of rights (1688)
- Established parliaments rights against the crown
- Restricted the exercise of the monarchs power
- Expression of parliaments effective supremacy in law.
- - dispensing power- the crown can no longer suspend or dispense with particular laws.
- - taxation- raising or keeping a standing army needs the consent of parliament.
- - parliamentary privilege- “that the freedom of speech and debates or proceedings in parliament
ought not to be impeached or question in any court or place out of parliament.”
‘whatever the queen in parliament enacts is law’
Parliaments sovereignty was “acquired”?
- Sovereignty of parliament is justified on the basis of legitimacy;
- Accepted by other bodies as being supreme:
- Accepted by the courts
Historical rule…
Who is sovereign?
In the USA the written constitution tells us that ‘we the people’ are sovereign
However the UK lacks a written constitution
Unsurprisingly, this means we need to search hard for the rule, the justification of the rule and the
“exceptions/ challenges” to the rule…
- This is a difficult area of the constitution;
- Ultimately about the location of power in the constitution.
- Links to separation of power and rule of law.
Political sovereignty
“the word ‘sovereignty’ is sometimes employed in a political rather than in a strictly legal sense. That
body is ‘politically sovereign or supreme in a state the will fo which is ultimately obeyed… in this sense of
the word the electors of great Britain maybe said to be… the body in which sovereign power is vested…
but this is a political, not a legal fact… the political sense of the word ‘sovereignty’ is, it is true, fully as
important as the legal sense or more so. But the two significations… are essentially different.
Legal sovereignty
Where does the legal sovereignty sit?
Case of proclamations (1610)
- King James I claimed the power to legislate by proclamation, ‘to prohibit new buildings in and
about London… [and no] prohibit the making of starch of wheat’.
- Coke CJ
- - the king by his proclamation or other ways cannot change any part of the common law, or
statute law, or the customs of the realm… also the king cannot create any offence by this
prohibition or proclamation, which was not an offence before, for that was to change the law,
and to make an offence which was not… also… the king hath no prerogative but that which the
law of the land allows him”
Bates’s case (case of imposition) (1606)
- Bates refused to pay an import duty that was imposed by James I without the approval of
parliament
- The duty was held valid by the courts
- Meant the king had the power to introduce and impose his own taxes.
DR Bonhams case (1609) 8 CO. REP 114
The bill of rights (1688)
- Established parliaments rights against the crown
- Restricted the exercise of the monarchs power
- Expression of parliaments effective supremacy in law.
- - dispensing power- the crown can no longer suspend or dispense with particular laws.
- - taxation- raising or keeping a standing army needs the consent of parliament.
- - parliamentary privilege- “that the freedom of speech and debates or proceedings in parliament
ought not to be impeached or question in any court or place out of parliament.”
‘whatever the queen in parliament enacts is law’
Parliaments sovereignty was “acquired”?
- Sovereignty of parliament is justified on the basis of legitimacy;
- Accepted by other bodies as being supreme:
- Accepted by the courts
Historical rule…
